PALMER
v.
GATLING GUN CO.
513
argued that certain claims of these patents, not relied on by the plaintiffs, are too broad. In this stage of the case the question of costs does not arise; but I may as well say that there is not sufficient evidence in the record to enable me to find whether these claims are valid or not,. and that the statute does not mean that claims not in issue should be contested for the mere purpose of settling the costs. More expense might be incurred in such a mode of trial than depended upon the main issue. Decree for the complainants.
THE GATLING GUN COMPANY.
(Circuit Court, D. Connecticut.
July 16, 1881.)
v.S;no.7-33
514
; i'EDERAL BEPORTEB.
when released, by& sprlllg,held, not injrringed by defendant's device constructed substantiall.r similar to the prior battery gun, except that the cartridge cbtimber is discarded and the cartridge tlw ust directly into the rear of the barrel.
lIenry Parsons, forplaintlff. .. Wm. Edgar Simonds and A. P. lIyde, defendant. SHIPMAN, D. J. This is a. bill in equity, founded upon the alleged infringement of letters patent issued to the plaintiff December 2, 1862, for an improved repeating or machine gun. The first and sixth claims of the patent are said to have been infringed, and are as fol lows: (1) Presenting and thrusting the cartridges into the rear of the revolving barrel or series of such barrels, in one point in its circuit, confining and discharging them at another point in such circuit, and removing the shells or cases in another part of such eircuit, in the manner substantially as set forth. (6) The clearing hooks, t t, arranged and operated as described ill connection with the revolving barrels, G, or their equivalents. The defendant's gun is made under letters patent to Richard J. Gatling, of May 9, 1865. The difference in the construction of the two guris IS tersely and correctly explained by Mr. Edward H. Knight, one of the defendant's experts, as follows: "The Palmer gun consists of a series of revolving barrels with one set of loading, firing, and extracting mechanisms operating upon each of the barrels in turn, the motion of the barrels being intermitted while these various operations are perforrned. If may, therefore, for practical purposes, be called one gun with four barrels. It has the advantage over a gun with one barrel in allowing the various operating mechanisms for loading, firing, and extracting, to operate upon the barrels consecutively as they pause for that purpose, during their circuit of revolution. The Gatling gun may be considered as having as. many gun mechanisms as barrels, being a system of a number of independant revolving together on a common axis. Each gun has its own barrel, loading, and shell-extracting devices, as well as its own firing pin. Each gun is so far independent that it may be made inoperative by the extraction of the loading plunger and firing pin without affecting the action of the other gnns. The loading and firing can only take place while the revolution is proceeding, as these actions depend upon the contact of the revolving parts with certain stationary cams on the inside of the hollow stationary breech casing... Each loading apparatus and firing pin and ejector belongs to its own barrel,with which it is in constant alignment. Each operation of loading, firing, and ejecting covers a certain part of the circle of revolution, being com. pleted as to each barrel by one circuit. One circuit delivers a volley of balls equal in number to that of the barrels."
It was testified on the part of the defendant, without contradiction, that a search into the state of the art through the United States and
PALMER V. GATLING GUN CO.
515
British patents, and other foreign patents accessible at the United dtates patent-office"Did not develop the existence, prior to Gatling's patent of 1862, of any gun having a continuously revolving barrel, nor of any gun which could be loaded while the barrels were in revolution, or fired while the barrels were in revolution, or the shells removed while the barrels were in revolution. .And prior to the Palmer patent mentioned, and aside from Richard J. Gatling's invention, this search did not develop the existence of any gun with revolving barrels having a device for presenting cartridges to the barrels, consisting of a combination of a carrier case, for the cartridges, with 3: grooved rotating cylinder, such as is shown in the Gatling gun, nor the existence of a thrusting-in device, consisting of a longitudinarily moving plunger revolving at the same time with a cylinder carrying thl' plunger, nor the existence of a confining device, consisting of the combination of revolVing barrels with a longitUdinally moving plunger, at the same time revolving with the cylinder which carries such plunger, nor the existence of a discharging device consisting of a longitudinarily moving firing pin at the same time revolVing synchronously with the barrel, to which it is appurtenant, nor the existence of an extracting device consisting of a longitudinarily moving hook revolving synchronously with the barrel to which it is appurtenant."
The gun made under the patent to Richard J. Gatling, of Novem· bel' 4, 1862, was, in general terms, like the gun of 1865, except that cartridge cases or cartridge chambers were fed against the rear of the revolving barrels, and the powder was discharged in the car. tridge chamber without being inserted into any other barrel, so that prior to the plaintiff's invention a machine gun was in use so constructed that the cartridges were presented and thrust against the rear of a revolving barrel during one part of its circuit, were confined and discharged during another part of the circuit, and were removed at another part of the circuit. It was claimed by the plaintiff, and was admitted by Mr. Knight to be true, that prior to the Palmer patent there was no machine gun which contained a device for thrusting the cartridge or charge into the rear end of a continuous revolving barrel as distinguished from a chamber to be brought in line with the barrels. It was insisted by the defendant that the operation of the loading, firing, and clearing mechanism, and the mechanism, are the same whether a continuous or a chambered barrel is used. The Gatling gun of 1865 discarded cartridge chambers, and thrust the copper cartridge into the rear of the barrel. .It is not claimed by the counsel for the plaintiff that the respective devices in the Gatling gun for loading, confining, and discharging the cartridges are equivalents for the loading and firing mechanism of the
516
FEDERAL REPORTER.
Palmer It is obvious that the two guns are constructed upon a different system; but it is claimed that the thrusting a cartridge , into the rear of a barrel without joints, as distinguished from a chamber or a barrel having joints, was an important advance in the art, and constituted the essence of Palmer's invention; and if that or mode of operation is used by the defendant, there is an infI:ingement of the first claim of the, patent, even though the partieulardevices in the two guns for accomplishing this mode of operation differ. so much that one device or series of devices is radically unlike the other. If the claim was of such broad character it would not be sustained. O'Reilly v. Morse, 15 How. 62; Matthew8 v. Schoenberger, 18 O. G. 14, 651. An examination of'the specification and claim shows that the lat· tel' did not undertake to cover so wide a field. The claim literally read is for a result; but that is not its meaning. It is for the combination of devices, substantially as described, for effecting the speci. fied result. It being borne in mind that revolving guns were old, and that revolving guns which were loaded, discharged, and cleaned at d,ifferent parts of their circuit antedated the Palmer, the claim is for a combination of three sub-combinations, one for loading cartridges into the rear of the barrel of a revolving gun at one point in its circuit, another for confining and firing such cartridges at another point, aud the. third for extracting the shells of the cartridges at another part of the circuit. It is not a claim for a continuous barrel in a revolving gun, as distinguished from a chamber, or a barrel with joints, and in such relations to the loading mechanism that the cartridge can be thrust into the rear of the barrel, but it is a claim for the loading, firing, and extracting mechanism; and such mechanism or combinations of mechanism as entirely differ from the plaintiff's, are not within the claim. If the patentee was led to believe that he could cover any mechanism which should load a revolving gun by thrusting cartridges into the rear end of the barrels, and which should discharge and thereafter extract the cartridges, the three operations being effected at different points in the circuit. he was in error. The remaining point is as to the infringement of the sixth claim. The extracting devices in the two guns are dissimilar. The operation of the respective devices is thus explained by Mr. Knight: "In the Palmer gun the bar, to the forward end of which the extractor hooks are attached, is reciprocated backwardly by a tappet on the operating crank shaft, lind when released is thrown forward by a spring so that the hooks come
THE COLLINS CO.
V.
COES.
against the breech-plate carrying the rear ends of the barrels. The hooks being thus in position against the breech-plate, the revolution of the barrels brings the shell last discharged within the grasp of the hooks, they forcing themselves between the flange of the cartrid,ge and breech, thereby loosening the shell to that extent. When the tappet described, in the course of its revolution, again operates rearwardly the extractor bar, the hooks on the end of the latter withdraw the shell completely from the barrel, and a tumbler hung to the frame and operated by a projection on the extractor bar dischai'ges the shell from the grasp of the hooks, allowing it to fall to the ground. In the Gatling gun the extractor hook is attached to the plunger, which forms the breech closer and snaps over the flange of th8 cartridge during the operation 'the cartridge into the rear of the barrel. The extractor hook retains of its position during the firing and for some time subsequently, until the plunger commences its rearward motion, carrying backward with it the hook and the shell in its grasp. The shell is either freed by its own action and falls. to the ground, or is ejected by a plate with which it comes in contact, and, tipped out of the grasp of the hook, falls to the ground."
There is no infringement, and the bill is dismissed.
THE Cor,IJINS CO. (Circuit Court, D.
COES and others.
"rf!S8f!ch usetts. May 21, 1881.)
5,294-hIPItOVEMEN'r IN MONKEY WRENCHES-PETITION TO VACATE DECREE AND REOPEN CAUSE.
A petition to vacate decree sustaining re-issued letters patent No. 5,294, granted February 25, 1873, to Lucius Jordan and Leander E. Smith, for improvement in monkey wrenches, and to allow the defendant to set up by a supplemental answer that Jordan was the sole inventor of the improvement, refused. 2. PETITION TO REOPEN CAUSE-SUPPLE)IENTAL ANSWER-NEWLy-DrscOVETtED DEFENCE.
Upon a petition for leave to reopen a cause, and to file a supplemental answer setting up a newly-discovered defence, after final hearing and decree, the evidence must be clearly snch as would have availed the defendants if introduced on tinal hearing. Where, in such a case, the defence sought to be introduced was that a joint patent was the sole invention of one of its patentees, the affidavit of such patentee that he was the sole inventor, and of others that he claimed to them to be the sole inventor, held, not to be such proof as would warrant the court in reopening the cause and admitting such defence.
In Equity. B. F. Thurston and W. E. Simonds, for complainants. Geo. L. Robert, and Thomas H. Dodge, for defendants. LOWELL, C. J. An interlocutory decree was entered in this cause, some months since, that certain of the claims of the patent sued on, which was re-issue No. 5,294 of patent No. 50,364, granted to Lucius
